from the but-only-if-they're-updated-there dept

A few weeks ago, we covered a NY Times article about how the Supreme Court was quietly changing rulings well after they had been released -- and often doing so without notifying anyone other than a few big legal publishers. Because of that, many people were still relying on the old and outdated versions. A few people suggested setting up an automated system to just check the Supreme Court website for changing documents and monitor those changes -- and that's exactly what someone has done.

Lawyer David Zvenyach quickly hacked together a system to check the Supreme Court's website every five minutes for any opinion that changes, and to then automatically tweet out an announcement @SCOTUS_servo. He then follows it up with a manual explanation of the change, and recently added a feature that will highlight the actual change in the document.

This is great -- though, it assumes that the Supreme Court will always update its website with the latest rulings. As the original article pointed out, that doesn't always happen. Still, it's a step in the right direction, though there's absolutely no reason that the Supreme Court doesn't do this itself. And, in the meantime, as I discovered earlier this week in looking up a certain case, it's not just the Supreme Court that does this, but many other courts as well. Perhaps we'll need to get Zvenyach to set up similar feeds for each of the different circuit appeals courts as well...

from the urls-we-dig-up dept

Adding a little bit of something can make a huge difference. For example, some carbon and a few other trace metals added to iron can make a steel stronger and stainless. Nanotechnology promises to improve a bunch of things with very small changes to the surfaces of common materials. But these small changes could also cause some big problems. Here are just a few links on some small ingredients that might not be so great for the environment.

from the the-first-rule-of-price-gouging... dept

The world of academic publishing is highly profitable -- and, apparently, highly sustainable. There's no shortage of content seeking publication as researchers, professors, etc. seek to have their work published and cited. Handing even more power over to publishers by linking publication with tenure, universities have sabotaged their own interests by giving academic publishers every reason to increase subscription rates.

It's not as though this has gone unnoticed. Backlash against exorbitant access fees withholding publicly-funded research from the public led to a boycott of Elsevier unless it withdrew its support of the Research Works Act, which sought to lock up even more academic works. Though more than 30,000 scientists joined the boycott (and Elsevier withdrew its support of the Act), little has changed in the academic publishing world.

A journal's editorial board has been left on the brink of resignation after an eight-month standoff with its publisher Taylor & Francis over the publication of a debate on academic publishing and the profits made by major firms.

Its “proposition” paper, “Publisher, be damned! from price gouging to the open road”, by four academics from the University of Leicester's School of Management, criticises the large profits made by commercial publishers on the back of academics' labours, and the failure of the Finch report on open access to address them.

The full paper is embedded below and, as you can see, Taylor & Francis have helpfully time-stamped it with my IP address.

The paper compares publishers with the music industry, noting that the latter saw surging sales once it began pricing its offerings more realistically. It also posits that less strenuous infringement countermeasures could help push prices down. But most damningly, it examines the rates charged by publishers, comparing those of for-profit entities with those of non-profits.

What has been characterised as rampant price inflation is one characteristic of the market in academic journals – or at least those journals published by commercial publishers – with several studies since 2000 indicating rapidly increasing prices charged by for-profit publishers (Bergstrom, 2001; Bergstrom and Bergstrom, 2004; Dewatripont et al., 2007; Harvie et al., 2012). Bergstrom and Bergstrom (2004) suggest that a journal page published by a for-profit publisher is between three and five times more expensive than one published by a not-for-profit publisher. One factor driving increasing prices is journal reputation (Bergstrom, 2001) – but this leads to increasing profit margins (McCabe, 2004). In short, widely-cited journals are perceived to be higher quality, which allows for-profit publishers to charge higher prices for such journals; if widely-cited and more highly-priced journals also enjoy higher circulation (because they are widely-cited), then publishers also benefit through lower average production costs (McCabe, 2004; Dewatripont et al., 2007).

The more widely-cited a journal is, the more likely it is to be published on a larger-scale (reducing costs) and the more desirable it is as a destination for submissions (lowering costs yet again). With this desirability comes the privilege of increasing prices, something for-profit publishers aren't exactly shy about doing.

But this generates expenses for other entities who aren't part of this self-sustaining feedback loop, often causing them to cannibalize related services to the detriment of the schools themselves.

Since 1999, spending on books has fallen by almost a ﬁfth in real terms, and from almost 12 per cent of libraries' total spending to just over 8 per cent. Expenditure on serials, on the other hand, has increased sharply: from just under £70 million to over £130 million. In real terms this represents an increase of 63 per cent; journals' share of total library spending rose from 16 per cent to almost 20 per cent. (Harvie et al., 2012, p.910)

Needless to say, Taylor & Francis wasn't interested in publishing a critique of its business model. So, it stalled the publication of this article for several months. (It was originally due to be published September 2013.)

The journal's general editor, Stuart Macdonald, a visiting professor of economics at Aalto University in Finland, said the non-appearance of the journal in September was followed, two months later, by a letter from a senior manager at Taylor & Francis demanding that more than half of the proposition article be cut.

“They never said why. They just said they didn't want this debate to take place,” Professor Macdonald said. “They also said I should have got their approval before inviting debate papers, but I have never done that before and it seems quite improper.”

He said matters came to a head at a “very unpleasant” meeting in January, when the journal’s editorial board threatened to resign en masse unless Taylor & Francis backed down.

This threat forced a half-assed capitulation from Taylor & Francis. It agreed to publish the paper but imposed several limitations. First, it stripped publishers' names from the paper and the four responses. Then, when it finally cleared it to run, it appended this footnote to the first page.

Disclaimer: Opinions and views expressed in this article (the Proposition) are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the content of this article. Any opinions and views expressed in this article are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the article should not be relied upon and should be independently verified with primary sources of information.

The academic publishing industry, as in the Prometheus debate on open access, has previously been happy to throw itself into the fray. Not so on this occasion. Many, many individuals working in the industry were invited to respond to the Proposition paper; not a one felt able to accept. It was made all too clear that the industry was in no mood for this debate. Indeed, at one time the editors were asked to excise the major part of the Proposition paper. Our refusal and ensuing negotiations explain why this debate was not published as intended in September 2013, and why no issue of Prometheus has appeared since.

The editorial, written by Professor Stuart Macdonald, also calls into question the publisher's decision to act as an editor.

But are academic publishers intruding in the editorial role? For example, without reference to any editor, the names of all academic publishers have been expunged from the Response papers in this issue. Institutional anonymity is already a custom in management studies, one that has done little for the standing of the subject. It would be unfortunate were it to spread throughout the social sciences, driving academic research from the empirical to the theoretical and abstract.

This isn't the first time an academic publisher has blocked publication because of subject matter, but this is usually due to outside forces, like the demands of corporations. In this case, however, it was an inside job. Not only did Taylor & Francis do all it could to prevent a discussion about its practices, but it also had a detrimental affect on other submissions. As MacDonald notes, he withheld other issues of the journal that were awaiting publication because he believed Taylor & Francis would give those preference over the problematic proposition paper. This has resulted in a backlog of papers awaiting publication, one that doesn't look to be eased any time soon.

With the trust between the publisher and the editors effectively destroyed by Taylor & Francis' actions, other options are being explored, including branching off into self-publishing. Unfortunately, any other routes taken will do very little to impact the publisher, or make it reconsider further transparently self-interested moves in the future.

from the PLEASE-DELETE-FROM-YOUR-VOCABULARY dept

Some entities cling to the belief that if a trademark isn't vigorously and ridiculously "defended," it will slip out of their grasp. This attitude has led to legal action (and legal threats) over common English words, with the complainant often bypassing any sort of reasonable confusion claims and heading directly towards claiming the entity "owns" certain words. (See also: "Super Bowl," "footlong" and "monster.")

We represent Emergency Essentials, LLC. with respect to certain intellectual property matters. Emergency Essentials, LLC. and its predecessor has been operating for more than 25 years selling food storage and other emergency supplies. Emergency Essentials has spent substantial amounts of money in developing goodwill in its marks and has a large number of U.S. Trademark Registrations, including Registration Nos. 3,665,475; 3,659,764, 3,582,153; 3,582,152; 3,574,562; 3,571,179; 3,571,178; 3,571,177; 3,571,176; 3,571,175; 3,571,174; 3,571,173; 3,571,172; 3,568,952; 3,568,951; 3,439,473 for the mark EMERGENCY ESSENTIALS.

It has recently come to our attention that the website, www.theemergencylady.com. for which you are listed as the registrant, has been using the mark "EMERGENCY ESSENTIALS", as in the webpage found at www.theemergencylady.com/emergency_essentials_001027.html. (see exhibit, attached).

While Emergency Essentials appreciates the work your website is doing to promote emergency preparedness, it is also required to enforce its trademarks against those who are using the marks in such manner as may lead to a likelihood of confusion. After reviewing the website, we believe that consumers may incorrectly associate the website as being from or affiliated with our client. Therefore, we would respectfully request that you change the description on the website to replace the trademark "Emergency Essentials" with terms such as "emergency supplies," "emergency provisions," "emergency goods," or some other term which does not use our client's trademark. Likewise, we would request that you do not use "Emergency Essentials" unless you are referring specifically to our client.

Within 10 days of this letter please confirm that you have ceased all use of our client's mark. We appreciate your cooperation in this matter and wish you the best with your endeavor. If you have any questions, please do not hesitate to contact us.

Very truly yours, [Attorney Signature]

Enclosure: Exhibit [A print out of the web page at www.theemergencylady.com/emergency_essentials_001027.html]

Seeing as this was sent Feb. 26th and the page is still live, the Emergency Lady was completely unfazed by the bogus claims, even when confronted with a hard copy of her own post. "Save a trademark, kill a tree," as the saying goes. While Emergency Essentials, LLC has done an admirable job of pushing down web results that make use of its registered trademarks place these two words next to each other, there's still plenty of work to be done in terms of completely eradicating any "confusing" use these common English words.

Any feelings that the average person might confuse an "emergency responder in a rural area's" personal website with a company that markets dehydrated food and other disaster preparedness supplies reside solely in the vivid imagination of the company's trademark protection squad. And Bateman IP isn't just going after small-time website owners. It's also suing bigger names as well.

But here's the most ridiculous aspect of Emergency Essentials, LLC's war of words. For a company so easily irritated by the use of common English words, it has no problem borrowing a well-known phrase as its own URL.

But this is apparently OK because the site carries the following disclaimer at the foot of the page.

EMERGENCY ESSENTIALS, LLC IS NOT AFFILIATED, ENDORSED BY OR HAS ANY RELATIONSHIP WITH THE BOY SCOUTS OF AMERICA®.

Thanks for clearing that up. If it's good enough for the BSA, then one imagines a small disclaimer hidden somewhere at Emergency Lady's site or Amazon itself should eliminate any customer confusion without having to use awkward phrases or remove content. It seems incredibly hypocritical to pursue a site that sells no product but uses certain words while operating a site that sells products conceivably related to the general outdoorsiness of Boy Scouting under the name beprepared.com. (This URL choice likely has something to do with a legal battle over a domain name [theemergencyessentials.com] that doesn't seem to have panned out for the company.)

Government-hired survey teams will soon ask hundreds of Washington state motorists to answer questions and provide samples of breath, saliva and blood — all to give safety and police agencies a clearer sense of how many people drive impaired.

The roadside surveys are voluntary, and participants will be paid up to $60, under the federally funded project this summer.

The only remaining question is how these will be handled. On its two previous attempts, the NHTSA sent an independent contractor to handle the blood draws and saliva collection. And both times, local law enforcement provided officers, vehicles and barricades -- all of which suggested to several motorists that these voluntary collections were far from voluntary. From what's being reported here, it appears that more effort is being made to ensure drivers know these surveys are indeed entirely optional.

Crews will not block or slow traffic, officials say. Drivers at a stoplight would encounter civilians wearing orange vests, with signs saying “Paid Voluntary Survey,” then be asked if they wish to participate.

The article also states that collected data will be destroyed when the report is published and that names and license numbers won't be recorded. The latter sounds ideal, but the reality of the situation is that, unless things have changed, consenting to a blood draw still requires the signature of the volunteer, which means there will be some sort of recording going on. And surveyors will still be collecting non-consensual "samples" using passive alcohol detectors. The defenders of this practice argue that these detectors are actually consensual (due to consent given by volunteering to be surveyed), even though people aren't notified about their existence until after they've already had their breath sampled.

The ACLU is keeping an eye on the NHTSA's newest survey, which, so far at least, seems to be headed towards a more obviously voluntary presentation. That's a huge improvement over its previous efforts and is likely a good indicator of how these will be handled in the future. Law enforcement officers will again be on hand to protect the cash payout and offer options to impaired drivers, but their presence will be far more muted than past instances.

If the NHTSA can learn from its mistakes and move on in a more honest and transparent fashion, it should be able to entice enough volunteers with its cash payments to present credible data at the end of its collection period. If it decides to go back to the old way, however, it will find it increasingly difficult to secure any participation at all.

from the the-future-is-now dept

Blaming stuff is becoming something of a fad, I guess. If recent reports are to be believed, it's not all hip and whatnot to blame ghost stories for violence, video games for everything, and specifically Watch Dogs for teaching children how to hack Glenn Beck's iPad. And speaking of Watch Dogs, the game du jour, it apparently has such a target on its back these days that it's being blamed for pre-crime. Confused? Let me explain.

Earlier this week, news media in North Carolina reported that at least three highway signs there had apparently been compromised and re-worded to read “Hack by Sun Hacker.” Similar incidents were reported between May 27 and June 2, 2014 in two other states, which spotted variations on that message left by the perpetrator, (including an invitation to chat with him on Twitter).

Now, the article then goes on to note that the blame for this hack in part falls on the way the signs were set up to use SNMP, allowing for a fairly simple password hack to give the hacker control of the signage. The hacker is described as a Saudi that is essentially a tinkerer, not to be counted amongst the more nefarious types of international bad actors. The Multi-State Informational Sharing and Analysis Center report responsible for the above, however, also lets loose with this gem:

“…likely coincides with the May 27, 2014 release of the video game ‘Watch Dogs,’ in which game play revolves around ‘hacking,’ with a focus on hacking critical infrastructure-based electronic devices in particular. Watch Dogs allows players to hack electronic road signs, closed-circuit television cameras (CCTVs), street lights, cell phones and other systems. On May 27, 2014, the malicious actor posted an image of the game on his Twitter feed, demonstrating his interest in the game, and the compromise of road signs occurs during game play. CIS believes it is likely that a small percentage of Watch Dog players will experiment with compromising computers and electronic systems outside of game play, and that this activity will likely affect SSLT [state, local, tribal and territorial] government systems and Department of Transportation (DOT) systems in particular.”

If you didn't just throw up, shame on you. What the report does is take a low-level script junkie and website defacer, who was already doing these things over the course of the past couple of years, and blamed his latest prank on Watch Dogs. Then, without missing a beat, it postulates that some unknown percentage of Watch Dogs players will put their controllers down just long enough to go out and try to hack all the things themselves. It's insane on its face. I don't recall any percentage of Nintendo players seeking out lines of turtles upon which to leap, nor do I recall any number of children or adults buying up all the hedgehogs at Pet Smart and then rolling them down long and complicated loop-to-loops to see how many rings they could collect. These are the kinds of allegations that only sound like they should make sense because games have become more realistic, but that doesn't mean they actually do make sense.

And in the end, the focus should be on improving the security of the systems in question, not demonizing entertainment as a scapegoat. The attempt to shift blame is a distraction from the real story: whoever put those road signs in place couldn't manage to protect them from a prankster. That's the entire tale, period, paragraph.

from the rant-on! dept

Earlier this week, we wrote about rumors that Elon Musk was going to free up some of Tesla's patents to encourage more people to adopt the company's Supercharger system. As we noted this shouldn't be controversial, but it was still considered as such. Elon Musk has now made the official announcement and it actually goes way beyond what was originally rumored. It's not just about the Superchargers, it's all of Tesla's patents. But, better than that, Musk explains why he no longer thinks patents make sense and even demolishes the one argument that even many patent skeptics make: that they're "still needed to stop big companies from copying your innovations."

As we've explained in the past big companies almost never recognize truly disruptive innovation when it happens. This is for a variety of reasons, including the basic innovator's dilemma, but also just because companies are so focused on their own things, it's tough to get them to realize outside innovation. Furthermore, even when they do copy, it's actually pretty rare for them to get it right. That's because, from the outside, they only copy the superficial stuff, and have no idea why something is really successful. And thus, even if they have the "exact plans" for the competitor's technology or process, they don't understand the little things that make customers love them. Similarly, innovators are constantly innovating, so by the time the copycat catches up, they're still behind.

But, an even bigger issue, as we explained before, is that having more viable competitors can also enlarge the overall market. So if a company like Tesla has no viable competitors, they're left educating the market and building all the infrastructure themselves -- and that's pure cost. Opening up their patents actually helps Tesla in the long run by (hopefully) spreading out some of those costs, and increasing the size of the overall market. This is what many patent system supporters just don't get -- but Musk clearly understands deeply.

He talks about how he used to be a patent system believer, but he's been converted in the other direction. And while he avoided patents at some of his companies, with Tesla he was convinced they were necessary, because "the big car companies" might just copy everything he's done. Now, he says, he knows that's not true, and he actually would prefer they do copy Tesla's work.

At Tesla, however, we felt compelled to create patents out of concern that the big car companies would copy our technology and then use their massive manufacturing, sales and marketing power to overwhelm Tesla. We couldn’t have been more wrong. The unfortunate reality is the opposite: electric car programs (or programs for any vehicle that doesn’t burn hydrocarbons) at the major manufacturers are small to non-existent, constituting an average of far less than 1% of their total vehicle sales.

At best, the large automakers are producing electric cars with limited range in limited volume. Some produce no zero emission cars at all.

Given that annual new vehicle production is approaching 100 million per year and the global fleet is approximately 2 billion cars, it is impossible for Tesla to build electric cars fast enough to address the carbon crisis. By the same token, it means the market is enormous. Our true competition is not the small trickle of non-Tesla electric cars being produced, but rather the enormous flood of gasoline cars pouring out of the world’s factories every day.

We believe that Tesla, other companies making electric cars, and the world would all benefit from a common, rapidly-evolving technology platform.

This is absolutely true and it's great to see it stated so directly. If only other companies were willing to do so. As for the actual way this will work, Tesla has announced that it "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology." That's not entirely putting the work into the public domain, but it's a good step. Years ago, I had hopes that Google and others would do something similar, but it has not come to pass. Google had made a similar pledge, but only for open source projects, and Twitter has basically given its own engineers the ability to veto any offensive patent litigation efforts by issuing their own license. But Tesla has now gone even further than both of them by basically telling any competitor to feel free to make use of its patents without worrying about getting sued.

Unlike so many other companies and company leaders, Musk appears to recognize the simple fact that innovation is not in how many patents you get, it's in how you actually build amazing products and services that people want -- and patents can often get in the way of that, rather than help it. It's nice to see him declare that so directly. He even took the symbolic gesture of removing the framed patents from Tesla's lobby wall. This is great to see and hopefully it will inspire others in the tech industry to put down similar stakes as well.

The report, "A Crisis of Accountability", has been published by the Privacy Surgeon and is based on collaboration with expert contributors from eighteen countries. The analysis determined that a large majority of governments have not responded in any "tangible, measurable way" to the disclosures that began in June 2013.

The report notes that while there has been a notable volume of "activity" in the form of diplomatic representations, parliamentary inquiries, media coverage, campaign strategies, draft legislation and industry initiatives, there has -- at the global level -- been an insignificant number of tangible reforms adopted to address the concerns raised by the disclosures. Two thirds of legal professionals and technology experts from 29 countries surveyed for the report said that they could recall no tangible measure taken by government.

However, there is some good news:

Despite this inactivity, the Snowden disclosures have triggered a noticeable shift in thinking across the world toward increased awareness of the importance of accountability, transparency and the rule of law with regard to both the activities of security agencies and the value of privacy. This shift -- in many parts of the world -- has empowered civil society, created a resurgence of interest in legal protections and sensitised media to key issues that have hitherto escaped public scrutiny at any substantial level.

Against this dismal background, the US emerges as one of the brighter spots (which should tell you how dire it is elsewhere):

The Snowden disclosures were met with a broad-based outpouring of outrage in the United States, with the criticism focused mostly on the privacy rights of US citizens. Media coverage was generally highly critical, with national media outlets such as the Washington Post, New York Times, ProPublica and Mother Jones publishing some of the disclosed documents. The disclosures also triggered numerous protests and grassroots campaigns, at least 6 lawsuits aimed at stopping NSA mass surveillance and several legislative proposals aimed at modifying NSA surveillance. The disclosures of the NSA's domestic spying programs, particularly the telephone call detail records collection program, have started a national conversation on both domestic and foreign surveillance policies. However, thus far, none of the surveillance reforms have been aimed at stopping the bulk collection of communications of non-US persons.

That last point is important: in all the moves to reform surveillance of Americans, however halting, little is being done to increase respect for the rights of law-abiding citizens outside the US -- who still form the vast majority of the world's population.
By contrast with the US, its main partner-in-surveillance, the UK, comes out of the report pretty badly:

Despite facing significant pressure in the wake of the Snowden revelations -- one of the largest leaks of classified material in history that revealed the secret mass surveillance apparatus run by GCHQ - the [UK] Government has responded with silence, obfuscation and secrecy.

Although rather depressing at times, the new report represents a valuable source of expert opinion from around the globe, with a wealth of useful references. It also offers a starting point for further action:

The data in this report may help indicate some other important pathways to future action for reform. One of the most significant of these relates to
interactivity between different strands of the reform community. Civil society and the tech community have not adequately adapted to the challenges raised by the Snowden revelations. For example, the interface and the communications between policy reform (e.g. efforts to create greater accountability measures, privacy regulations) and technical privacy solutions (e.g. designing stronger embedded security) are worryingly inconsistent and patchy. Few channels of communication and information exchange exist between these disparate communities.

Let's hope a similar study in twelve months' time will be able to report on progress on these and other approaches to reining in the blanket global surveillance revealed by Snowden a year ago.

from the media-hype dept

Since we originally predicted and then witnessed major media outlets losing their minds over the horrific attempted murder committed by two young girls in Wisconsin, you may have heard that there has been a second attempted killing by another young girl that's also being billed as a "Slender Man killing." In this latest case, a young girl wore a white mask and attempted to stab her mother. She too is supposedly involved in the Creepypasta community and was interested in the Slender Man story. Media outlets, that really ought to know better, have since been knocking each other over in an attempt to shine the largest spotlight on an internet community that enjoys telling each other ghost stories in an attempt to assign blame for the horrors on which they report. It turns out that, should they delve a little deeper to understand what the Slender Man community is all about, perhaps they should be turning that spotlight on themselves instead.

Fruzsina Eordogh, who appears to be well informed about how the Creepypasta community and the Slender Man myth operates, outlines the folly that is mass media reporting on the two attacks. He claims there have been two glaring omissions in the reporting, the first of which is an absolute refusal to include the attention multipliers of online myth disseminators like Pew Die Pie. Pew Die Pie is something of a YouTube celebrity and his work includes Slender Man videos.

The little girls first tried to stab their friend in a public restroom, then in the woods. Both scenes, of Slender Man catching up with you in a public restroom and in the woods, happen in the first episode of Pew Die Pie's Slender Man video series. Is Pew Die Pie responsible for the stabbings? No, of course not.

In the case of the 13-year-old girl, her mother mentioned her daughter plays Minecraft, and the ultimate bad guy in the game is Enderman, a creepy figure the creator of Minecraft admitted to being inspired by Slender Man. Is Minecraft responsible for the stabbings? Again, no, of course not, but yet again every outlet has failed to mention the Slender Man-inspired monster in Minecraft.

Understanding the point of the above is key: nobody is blaming Pew Die Pie, Minecraft, or anyone else using the myth to tell stories for the killings. The sole point being made is that you have to understand the way the Slender Man community works: it is built off of gaining recognition in wider audiences. That's the whole point of the community, to expand upon the myth by creating doctored pictures, telling wilder stories, and getting Slender Man out there as widely as possible. The whole myth started with fictional photographs and news reports. That's the point. And guess how you take that to the next level?

Think of Slender Man as a community art project, where for years now adults, teens and tweens have been fabricating fake news articles, photographs, and even video games and comics, about Slender Man, this all-powerful, all-knowing spectre-monster with long arms (shaped like claws, or tree branches, or tentacles depending on the artist) that mind controls and kills people. When these two Wisconsin girls say they wanted to honor the Slender Man myth, to make him "real" and prove the "skeptics wrong," it sounds more like they wanted to participate in the community by creating the most credible news article about Slender Man ever. They didn't want to make him real by doing another photoshop, that's already been done. So how do you make the most credible news article about Slender Man? You actually go out and make Slender Man happen in a way the news can cover.

And, because these kids have a basic understanding of the world in which they live, they likely damn well knew the mass media would gobble this up like pigs at a trough. The girls in Wisconsin did more to propel the Slender Man myth into the public consciousness than anyone had before and the news outlets were their tools and unwitting conspirators. By the time the ink was dry on the Wisconsin story, a young girl in Ohio would have all the confirmation required on how to keep the news multiplier going in favor of Slender Man. Slender Man has jumped out of the fictional realm now, like the Poltergeist leaping from a television, and the news is the highway it took to get there.

Any media outlet that reports on this story and fails to mention that they as an outlet are now contributing to the Slender Man myth, is laughably ignorant and dangerous. The press does not exist in a vacuum. The press cannot blame CreepyPasta and memes but not blame itself or Pew Die Pie. In fact, the primary driver of the Slender Man myth is no longer Pew Die Pie, Minecraft, CreepyPasta, reddit, 4chan or Something Awful, but the press itself.

At some point all the people of our world are going to have to sit down and have a long conversation about how our news media operates to glorify some of the horrors we face. Murderers, school shooters, and terrorists all rely on the clockwork-like commitment of mass media to turn them into what they most want to be: a spectacle. We don't have to play along, but we do. That part's on us. But it's also on a media culture that prefers to keep the important role that they play out of the story.

from the good-luck-with-that dept

You may recall, back when things were getting particularly desperate for Prenda Law, that it suddenly filed a series of lawsuits against its largest critics, including the users of the two major copyright troll tracking websites: FightCopyrightTrolls.com and DieTrollDie.com. That didn't work out too well, but Prenda's successor-in-spirit, Malibu Media, apparently did not learn the lesson. In a rather incredible filing in one of its cases in Illinois, one of Malibu Media's main lawyers, Mary K. Schulz, absolutely flips out about FightCopyrightTrolls and its publisher SophisticatedJaneDoe, calling the site's readers "an internet hate group" and accusing it of being engaged in "illegal extrajudicial tactics" in working with lawyers who are fighting Malibu Media cases across the country. The filing has to be read to be believed. The purpose of the filing is to try to bar opposing lawyers from talking to people associated with SJD's site, because how dare opposing counsel actually be provided with relevant information to a case, concerning how Malibu Media operates (such as champerty or copyright misuse or other questionable tactics including a bogus "exhibit" that has nothing to do with the case in question.

It appears that Malibu Media's lawyers have something of a persecution complex:

Plaintiff is the target of a fanatical Internet hate group. The hate group is comprised of
BitTorrent users, anti-copyright extremists, former BitTorrent copyright defendants and a few
attorneys. Opposing counsel is one of its few members. Indeed, as shown below, opposing
counsel communicates regularly with the hate group’s leader. Members of the hate group
physically threaten, defame and cyber-stalk Plaintiff as well everyone associated with Plaintiff.
Their psychopathy is criminal and scary.

By administering and using the defamatory blog www.fightcopyrighttrolls.com,
“Sophisticated Jane Doe” (“SJD”) leads the hate group. SJD is a former defendant is a suit
brought by another copyright owner... She is a self-admitted BitTorrent copyright
infringer. SJD’s dedicates her life to stopping peer-to-peer infringement suits.

Most of the rest of the filing is taking some of SJD's admittedly mocking tweets and trying to twist them into some sort of conspiracy against Malibu Media and all of its lawyers. Ridiculously, the filing asserts that "The Internet hate group has conspired to and is implementing an unethical and illegal campaign to intimidate Plaintiff by threatening it with criminal sanctions." As lawyers, they must know that only the government can actually get criminal sanctions. No private individual can legitimately threaten anyone with criminal sanctions. Opining that certain actions may open you up to criminal sanctions is very, very different than actually threatening someone with criminal sanctions when you have no direct power to do so.

Schulz also attacks the lawyers fighting against Malibu Media for not asking SJD to stop, as if they have any control over the situation, and as if they have any obligation to ask someone to stop investigating and mocking Malibu Media and its lawyers. Much of the complaint focuses on how the lawyer opposing Malibu Media in this case is "a key member of the internet hate group."

Opposing counsel regularly Tweets with the other members of the hate group.
Further, his Tweets are often part of a
series of Tweets intended to harass
Plaintiff and its counsel.
Opposing counsel also Tweets about on-going
litigation including this case and disparages
Plaintiff... He even called Plaintiff a liar.

Opposing counsel is SJD’s and the other
hate group members’ darling. They give him Kudos
as he works toward trying to criminalize peer-to-peer copyright infringement suits.

I've seen no indication that anyone is trying to "criminalize" copyright infringement suits. They're pointing out other behavior that may violate various criminal statutes. There's a pretty big difference there. Malibu Media is also upset that the lawyer in question, Jonathan Phillips, actually releases some of the evidence turned up during discovery on his website. Because, apparently, Malibu Media thinks the legal process should be held entirely in secret. While it points out, accurately, that there is not a "first amendment right to see discovery materials," that doesn't mean they must be kept under seal.

Basically, the entire filing is an effort to (1) slam Malibu Media's critics, accusing them of defamation and illegal tactics, without ever actually filing a lawsuit against them and (2) more importantly, an effort to make sure that a bunch of potentially damning and embarrassing information about Malibu Media is kept secret. Either way, calling a bunch of your online critics psychopaths and a hate group isn't generally a strategy that works long term.

from the uh-oh dept

For many years, we've had ongoing debates about whether or not it's ethical or legal to use open WiFi connections. It's one of those debates that never seem to stop. Unfortunately, in a ruling yesterday, the Third Circuit appeals court suggested that merely using an open WiFi network may be a criminal act. This is hugely problematic for a variety of reasons.

In this case, police were trying to track down someone downloading and sharing child pornography via a P2P setup, and were able to track down the IP address. After visiting the residence associated with the IP address, the police quickly realized that no one in the house was the likely person involved with child porn (there was no child porn on the computers, nor the file sharing software with a matching user ID). From there, the police asked the residents to cooperate by installing "MoocherHunter" to try to track down who was actually connecting to their open router. It's worth noting that the police actually had a "lengthy discussion" with federal prosecutors over whether or not a warrant was needed for MoocherHunter first, and they concluded it wasn't needed.

Eventually, the results were narrowed down to the likely culprit, Richard Stanley, and the police then got a warrant to search that guy's apartment, leading him to confess (after first trying to run away). Stanley's computer also contained the child porn. Stanley tried to suppress the evidence, arguing that the use of MoocherHunter required a warrant, not unlike the Kyllo ruling that found that police needed a warrant to use a thermal imaging device from outside someone's house to detect if there was enough heat inside to support probable cause for growing marijuana. The court here notes that while, superficially, these may look similar (a device pointed at someone's residence), the reality is that they were quite different, because Kyllo was about looking inside someone's house to see what they were doing in the privacy of their own home, whereas MoocherHunter was about identifying someone who had reached out of their own home into someone else's space to make use of their WiFi connection.

Critical to Kyllo’s holding, however, was the fact that the defendant sought to confine his activities to the interior of his home. He justifiably relied on the privacy protections of the home to shield these activities from public observation. See Kyllo, 533 U.S. at 34 (characterizing the thermal imaging scan as a “search of the interior of [Kyllo’s] home[],” which it considered to be “the prototypical . . . area of protected privacy”). See 13 also id. at 37 (“In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”) (emphasis in original).

Stanley can make no such claim. Stanley made no effort to confine his conduct to the interior of his home. In fact, his conduct—sharing child pornography with other Internet users via a stranger’s Internet connection—was deliberately projected outside of his home, as it required interactions with persons and objects beyond the threshold of his residence. In effect, Stanley opened his window and extended an invisible, virtual arm across the street to the Neighbor’s router so that he could exploit his Internet connection. In so doing, Stanley deliberately ventured beyond the privacy protections of the home, and thus, beyond the safe harbor provided by Kyllo....

The court further emphasizes that since MoocherHunter only revealed the path, but not the content, Stanley has even less privacy interest. That all makes some amount of sense. The court then has an interesting discussion about the third party doctrine, and whether or not Smith v. Maryland applies to Stanley's signals. In this case, it concludes it does not. And while the reasoning is a bit convoluted, this seems important:

Were we to hold that Stanley exposed his “signal” under Smith by transmitting it to a third-party router, we might open a veritable Pandora’s Box of Internet-related privacy concerns. The Internet, by its very nature, requires all users to transmit their signals to third parties. Even a person who subscribes to a lawful, legitimate Internet connection necessarily transmits her signal to a modem and/or servers owned by third parties. This signal carries with it an abundance of detailed, private information about that user’s Internet activity. A holding that an Internet user discloses her “signal” every time it is routed through third-party equipment could, without adequate qualification, unintentionally provide the government unfettered access to this mass of private information without requiring its agents to obtain a warrant. We doubt the wisdom of such a sweeping ruling, and in any event, find it unnecessary to embrace its reasoning.

That's a very good ruling. But, then, suddenly, the ruling goes off the rails, saying that merely connecting to the open WiFi itself may have been a criminal act:

The presence of Stanley’s signal was likely illegal. A large number of states, including Pennsylvania, have criminalized unauthorized access to a computer network. A number of states have also passed statutes penalizing theft of services, which often explicitly include telephone, cable, or computer services. We need not decide here whether these statutes apply to wireless mooching, but the dubious legality of Stanley’s conduct bolsters our conclusion that society would be unwilling to recognize his privacy interests as “reasonable.”

Yikes. While the court acknowledges in a footnote that this issue is somewhat contested, it's incredibly problematic in general. Just the idea that this is unauthorized access is a big problem, because it's not unauthorized. The neighbors left their WiFi open, and thus, by default, it is sending out signals that effectively say "welcome, feel free to connect to this network." It is authorized by the very nature of the setup of the network. Thus, it's quite questionable to argue that this is either unauthorized access or "theft of services." The court doesn't even seem to consider this. And while this part is not central to the overall ruling, it is still quite troubling to have that on the record in an appeals court ruling.

from the big-win dept

A very big and important ruling came out yesterday in the 11th Circuit appeals court, saying that police need to get a warrant to track someone's location (via their mobile phone locations). This is a big deal, as we've been discussing for years. Many state courts have issued similar rulings, but many federal courts had gone the other way. While a few district courts had agreed that a warrant was needed, having an appeals court say so is a big deal.

In this case, the defendant, Quartavius Davis, was accused of a bunch of crimes, involving robbing a bunch of stores. Among the variety of evidence against him was cell phone location data -- specifically 11,606 location records. Davis argued that the data was collected without a warrant, violating his 4th Amendment rights (he also has other issues with the way the case was handled and challenges some other aspects as well, but we'll focus on the 4th Amendment issue concerning his location data). The court notes that other courts are still struggling with this issue, and looks to the Supreme Court's famous ruling in the Jones case, involving whether or not a warrant is needed to attach a GPS device to a car. As we noted then, that ruling stopped short of really examining if gathering up location data required a warrant, though some of the side opinions (mainly the concurrence by Justice Sotomayor) discussed the idea. This ruling looks back at some history around the 4th Amendment, and the evolving view concerning "trespass theory" vs "privacy theory," before digging into Jones. The Jones case, you may recall, was decided on the idea that putting the device on the car was a form of "trespass," leaving aside the privacy aspect. But, obviously, this case is different. Thankfully, the court takes some instruction from the concurrences that do discuss privacy theory, and see how they apply in this case.

But, in an important way, the court seems to go even further. While much of the focus in the Jones case was on the "mosaic theory" of linking together a bunch of individual location data points to create a picture that reveals something people expected to be kept private, this ruling notes that even a single data point may be enough to violate the expectation of privacy:

One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell
site location information can convert what would otherwise be a private event into
a public one. When one’s whereabouts are not public, then one may have a
reasonable expectation of privacy in those whereabouts. Therefore, while it may
be the case that even in light of the Jones opinion, GPS location information on an
automobile would be protected only in the case of aggregated data, even one point
of cell site location data can be within a reasonable expectation of privacy. In that
sense, cell site data is more like communications data than it is like GPS
information. That is, it is private in nature rather than being public data that
warrants privacy protection only when its collection creates a sufficient mosaic to
expose that which would otherwise be private.

The court also rejects the idea that the information is not private just because it puts the defendant near the scene of a crime:

The prosecutor at trial stressed how the cell phone use of the defendant
established that he was near each of six crime scenes. While committing a crime is
certainly not within a legitimate expectation of privacy, if the cell site location data
could place him near those scenes, it could place him near any other scene. There
is a reasonable privacy interest in being near the home of a lover, or a dispensary
of medication, or a place of worship, or a house of ill repute. Again, we do not see
the factual distinction as taking Davis’s location outside his expectation of privacy.
That information obtained by an invasion of privacy may not be entirely precise
does not change the calculus as to whether obtaining it was in fact an invasion of
privacy.

And, finally, the court addresses the famed "third party doctrine" issue, of whether or not Davis gave up his right to privacy to this information because it's been "given" to a third party (i.e., the mobile phone operators). The court is not convinced and (thankfully) explains how Smith v. Maryland (that key case that so many third party doctrine claims rely on) doesn't make sense here, relying on a ruling from the 3rd Circuit, stating that because Davis did not "voluntarily" shared this information with the mobile operator, the third party doctrine does not apply (amusingly, the court even cites the government's own arguments to support the lack of a voluntary handover):

The reasoning in Smith depended on the proposition that “a person
has no legitimate expectation of privacy in information he voluntarily turns over to
third parties,” .... The Third Circuit went on to observe that “a
cell phone customer has not ‘voluntarily’ shared his location information with a
cellular provider in any meaningful way.” That circuit further noted that “it is
unlikely that cell phone customers are aware that their cell phone providers collect
and store historical location information.” ... (emphasis added).
Therefore, as the Third Circuit concluded, “when a cell phone user makes a call,
the only information that is voluntarily and knowingly conveyed to the phone
company is the number that is dialed, and there is no indication to the user that
making that call will also locate the caller.” ... Even more persuasively, “when a
cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” ....

Supportive of this proposition is the argument made by the United States to
the jury. The prosecutor stated to the jury “that obviously Willie Smith, like
[Davis], probably had no idea that by bringing their cell phones with them to these
robberies, they were allowing [their cell service provider] and now all of you to
follow their movements on the days and at the times of the robberies . . . .” Just so.
Davis has not voluntarily disclosed his cell site location information to the provider
in such a fashion as to lose his reasonable expectation of privacy.
In short, we hold that cell site location information is within the subscriber’s
reasonable expectation of privacy. The obtaining of that data without a warrant is
a Fourth Amendment violation.

That said, the court still decides to not overturn the original ruling, saying that the court ruled in good faith. However, it still means that future cases will require a warrant for this information (within areas covered by the 11th Circuit). It seems likely that this, or another similar case in a different circuit, will eventually make it to the Supreme Court, but this is a very good ruling in the meantime.

from the bringing-citizens-the-war-they-never-wanted dept

That law enforcement agencies across the US are swiftly converting themselves into military outfits is hardly a surprise at this point. The problem is that nothing seems to be slowing them down, not even the dismayed reactions of citizens supposedly under their care.

The government's desire to offload its unused military hardware at deeply discounted rates has turned a few outliers into the new normal. Towns as with populations well under the 10,000 mark have secured Mine-Resistant Ambush Protected (MRAP) vehicles, supposedly in order to keep up with a non-existent arms race between the good guys and the bad guys.

The MRAPs are only the most visible symptom of law enforcement's desire to dress for battle. Along with the vehicles (which normally run from $250,000-$750,000 but are routinely paid for by DHS grants awarded to requests that mention the word "terrorism" or "drugs" in a sufficiently terrified manner), agencies are also picking up military-grade weapons like grenade launchers and automatic weapons. The low prices and large grants make this an opportunity few agencies are able to resist.

The problems with this sort of ad hoc "mobilization" are numerous. The dangers of outfitting police with military gear can best be signaled with a combination of "if all you have is a hammer..." and Chekhov's Gun. If you give police military gear, they're going to want to use it. The very occasional shootout with heavily-armed criminals simply won't satisfy the urge to deploy the new acquisitions. The slightly-more-occasional no-knock warrant served in the dead of night to known drug offenders won't sufficiently scratch the itch. Consequently, this:

All the training and all the equipment obtained over the years to… crack down on unlicensed barbering. (Or check water quality/"rescue" a baby deer from an animal shelter.) Square that with this statement by David Lutz, chief of the Edinburgh (IN) police department:

Lutz fully supports using the MRAP. "Oh, yeah, anything for the safety of officers," he said. "SWAT is after the worst of the worst. It's what they do."

Crime, including domestic terrorism -- the fear most commonly cited in equipment requests -- has never been lower. But the nearly universal response has been to escalate. With no data on their sides, defenders of these acquisitions are forced to rely on speculation and worst-case hypotheticals to defend bringing an MRAP into communities where violent crimes like homicide are nearly nonexistent.

“I don’t like it. I wish it were the way it was when I was a kid,” [Neenah, WI police chief Kevin Wilkinson] said. But he said the possibility of violence, however remote, required taking precautions.

Remote possibilities are the stated "goal." The reality is raided barbershops.

Others see it as nothing more than the natural progress of law enforcement, so entirely normal that what citizens perceive as a shift towards a police state is actually something so innocuous it can be taken to local schools to impress the kids.

Capt. Chris Cowan, a department spokesman, said the vehicle “allows the department to stay in step with the criminals who are arming themselves more heavily every day.” He said police officers had taken it to schools and community events, where it was a conversation starter.

"The United States of America has become a war zone," he said. "There's violence in the workplace, there's violence in schools and there's violence in the streets. You are seeing police departments going to a semi-military format because of the threats we have to counteract. If driving a military vehicle is going to protect officers, then that's what I'm going to do." (Pulaski County Sheriff Michael Gayer)

The unintentionally irony of this claim (which also happens to be both completely ridiculous and profoundly disturbing) is that these "new war zones" will apparently be populated by US citizens returning from the "old" war zones. This is what's awaiting our nation's military veterans: their old equipment being deployed against them, because if they killed overseas, they'll probably just keep on killing when they get home.

In the Indianapolis suburbs, officers said they needed a mine-resistant vehicle to protect against a possible attack by veterans returning from war.

“You have a lot of people who are coming out of the military that have the ability and knowledge to build I.E.D.’s and to defeat law enforcement techniques,” Sgt. Dan Downing of the Morgan County Sheriff’s Department told the local Fox affiliate, referring to improvised explosive devices, or homemade bombs. Sergeant Downing did not return a message seeking comment.

Law enforcement agencies seem to want a war. And if the public fails to give them one, they'll apparently manufacture one themselves by sending heavily-armed men to enforce hairdresser regulations and use MRAPs to break up knife fights. On the bright side, this issue is receiving more and more attention, but so far, the ability of law enforcement agencies to obtain military gear far outpaces efforts directed at tempering this activity.

The EMA has produced a further draft of the policy which would introduce barriers to access to clinical trial data that would make the job of researchers who want to scrutinise it almost impossible.

The policy introduces terms of use which say that researchers can access the data on screen only with printing, sharing or saving of the data forbidden.

It allows the company who supplied the data to the EMA to decide which information to redact so researchers may never know what information is being kept hidden.

The EMA's draft policy also asks researchers to agree that the companies who produced the trial data can take legal action directly against the researchers if the trial sponsor considers the researchers broke any of the conditions, introducing a new and unpredictable risk of high legal costs into routine academic work.

The volunteers who take part to clinical trials put their own life at risk of unexpected adverse drug reactions. They do so to contribute to scientific progress for the benefit of society. Therefore the results of the trials belong to them and to society at large . Everybody has the right to access the evidence used by EMA scientific committees to determine the benefits and risks of medicines.

Despite that public-spirited risk-taking by volunteers, pharmaceutical companies are trying to claim the resulting data as "commercially confidential information" that belongs exclusively to them, not to society. The BEUC letter ends by posing an interesting question:

we take this opportunity to ask you to clarify the impact -- if any -- of the settlement with AbbVie on the definition of the new policy.